SAFE AT HOME, OUT IN NEWS MEDIA

By Murray Chass

February 26, 2012

On the field, Ryan Braun is a winner. Last season he won the National League most valuable player award, led the league in slugging percentage and extra-base hits, was second in batting average, runs scored and total bases and was fourth in runs batted in.Ryan Braun Press 225

Off the field, Braun is a loser. Last year he tested positive for a banned substance, and this year he won his appeal of the 50-game suspension he faced.

How does winning his appeal make him a loser? Read the newspapers:

“This was a legal fight, and Braun found a way to win,” Tyler Kepner wrote in The New York Times. “Does that make him innocent of cheating? We still do not know…. He won on a technicality; there’s no other way to say it.”

“He wasn’t exonerated. He was acquitted. There’s a difference,” Mike Lupica wrote in the New York Daily News.

In the New York Post, Joel Sherman wrote that Braun “is not a complete winner,” adding, “he does not walk out of this viewed as a clean player.”

What’s a guy to do? He’s guilty if he’s found to be guilty, and he’s guilty if he’s found to be innocent. The only difference in those outcomes apparently is Braun, the Milwaukee Brewers’ left fielder, won’t miss the first 50 games of the coming season.

Besides being viewed as guilty despite the arbitrator’s ruling that overturned the 50-game suspension, Braun faces even more insulting outrage from the news media.

Not content with disagreeing with the arbitrator’s decision, Kepner wants his pound of flesh. He wants Braun to tell the public what he did, why he did it and when he did it.

“Anything less than a full explanation will leave lingering doubts,” Kepner wrote, “at least among people who consider his case beyond the surface.”

Kepner’s arrogant demand is reminiscent of the clamoring of reporters for Alex Rodriguez to tell all after he acknowledged having used steroids, as if the admission were not sufficient – how often did he use steroids, did he inject them, if he did, who injected him and anything else any particular reporter wanted to know and thought Rodriguez was obliged to disclose.

I wondered at the time if any of those reporters would be willing to tell their readers – or their editors — if they ever reported or wrote an article under the influence of marijuana or cocaine. Right, I didn’t think so.

In declaring that Braun owes the public a “full explanation” of what he did, the Times’ Kepner prompted comparison with the much milder position he took on Barry Bonds last April after Bonds was convicted of obstruction of justice but avoided further conviction when the jury deadlocked on three counts that he lied to a grand jury.

“The verdict in San Francisco does not help his cause,” Kepner wrote, “but it is peripheral to the Hall of Fame debate. Almost everybody believes Bonds used steroids, and more than a quarter of voters believe steroid use disqualifies a player from induction. There may be flaws with such logic, but that is reality.”

Nowhere in that statement or anywhere else in the column did the writer tell Bonds he had to allocute, to use a “Law and Order” term, about his obstruction of justice or perjury charges.

Ryan Braun3 225Besides my problem with the refusal of the news media to accept the arbitrator’s innocent verdict for Braun, I have an even bigger, a more general, one, dealing with what is supposed to be the confidentiality of the process.

There have been so many leaks in the case, from the identification of Braun Dec. 12 as having tested positive for an illegal substance through the arbitrator’s decision, that a very big umbrella would not be sufficient to keep those involved in the case from getting wet.

Everything about a drug case is supposed to be confidential. If a positive test comes up, the Montreal laboratory that conducted the test notifies the independent program administrator, who informs the commissioner’s office (Rob Manfred) and the union (Michael Weiner).

If the B sample confirms the positive test, the commissioner’s office tells the player it intends to take disciplinary action, and he tells the union if he wants to appeal the suspension. No announcement is made unless and until a player is suspended.

In Braun’s case, the public should have never known that he tested positive. But ESPN reported his positive test, citing two anonymous sources. I believe the network’s two reporters had two sources, one who originally told them about the positive test result and the other who confirmed the information they got from the first person.

Those people were obviously in a position to now the result, and I originally thought the primary source was in the commissioner’s office – who knows, maybe it was Manfred himself, the clubs’ chief labor lawyer – but I have been told that the commissioner’s office and the union know who it was, he has acknowledged being the source and he is not in either office.

When Selena Roberts reported three years ago that Rodriguez had used steroids, she cited four sources, and I didn’t believe it. Roberts reported that Rodriguez’ name was on a list of about 100 players who produced positive results in 2003 in what the clubs and players agreed would be anonymous testing.

There again was an instance of a betrayal of promised anonymity. A few more names from that list surfaced – Manny Ramirez, Sammy Sosa, David Ortiz – the result of a determined effort by a young reporter, the Times’ Michael Schmidt, to make a name for himself.

The only problem was that to get names Schmidt induced lawyers to violate a court order that sealed the list and prohibited anyone connected with the case from disclosing any of the names. Schmidt even wrote about his reporting strategy:Manny Ramirez6 225

“The information about Ramirez and Ortiz emerged through interviews with lawyers and others connected to the pending litigation. The lawyers spoke anonymously because the testing information was under seal by a court order.”

Donald Fehr, then head of the union, said that what Schmidt did was a criminal act. “The leaking of information under a court seal is a crime,” Fehr said at the time. “The active pursuit of information that may not lawfully be disclosed because it is under court seal is a crime.”

However, Bill Keller, then the Times’ executive editor, dismissed Fehr’s view.

“The idea that ordinary journalistic inquiry constitutes criminal activity is ludicrous,” he said. “We ask people questions all the time that it would be imprudent or risky for them to answer. Whether or not they answer is up to them. Sometimes, whether out of civic-mindedness or for other reasons, they disclose information that powerful institutions intended to be secret. Sometimes we publish that information. It’s called journalism.”

A lawyer who is not involved in the confidentiality matter but is familiar with Schmidt’s effort to get names of players from the 2003 list said, “Schmidt wanted to find a law clerk who might not have been happy with his previous job and figured he might get him to talk.”

In the Braun instance, the Times was not alone in betraying others’ confidences. Everybody was doing it. In fact, everybody was doing it so much that the commissioner’s office and the Players Association issued statements saying their internal investigations found that no one in their offices was responsible for “the breach of confidentiality.”

There was one curious difference in the statements. Weiner, the union chief, said, “We are confident that it was not caused by the Commissioner’s Office, the MLBPA or anyone associated in any way with the Program.”

Speaking for the commissioner’s office, on the other hand, Manfred referred to the original leak of Braun’s test result and said only, “we are convinced that the leak did not come from the commissioner’s office.”

I wanted to ask Manfred why he limited his comment to his office, but when I called him Friday, his secretary said he was on a call and would have to call me back. He never did. Weiner called but declined to discuss the case, citing the confidential nature of the process.

Shyam Das, the independent arbitrator, whose vote turned the three-man panel’s decision in Braun’s favor, had instructed all of the witness before the two-day hearing last month not to discuss the case. At least some ignored him, based on newspaper reports.

Under the testing agreement, the arbitrator is obliged to issue a decision as soon as possible after the hearing, then provided a written decision within 30 days. But the decision was barely out of Das’ mouth when reporters were filling their stories with details of the case presented by Braun’s lawyers and the reasons behind Das’ decision.

“In a 2-1 vote,” the Daily News reported, “the panel that heard Braun’s appeal agreed that valid questions had been raised about the manner in which the test sample was handled.”

“Braun’s defense,” the News added, “centered around his claim that the test administered to him in the Brewers’ clubhouse on Saturday, Oct. 1 was compromised once it left the premises, including that after the urine sample was collected…it sat in the home of one of the collectors for two days before being shipped by FedEx” to the Montreal lab for analysis.

“The sample,” the report said, “was not brought to FedEx until that Monday afternoon, a delay on which the arbitrator apparently based his decision.”

“In a two-day hearing on Jan. 19 and 20,” the News continued, “Braun and his legal team raised the chain-of-custody issues and pointed out that the 28-year-old left fielder had never failed a test before, and that he easily passed another test not administered by MLB shortly after he was told of his positive test.”

Manfred Selig Weiner 225According to the Times, “Braun’s defense team was successful in raising questions about how the tester stored Braun’s urine sample in his home refrigerator instead of taking it directly to a FedEx center for shipment to a laboratory in Montreal.”

The Times also quoted a “person with direct knowledge of the case” as saying “that none of the issues brought up on Friday by Braun were raised in the actual arbitration hearing on his case,” details of which weren’t supposed to be disclosed or discussed.

Continuing to discuss matters he wasn’t supposed to, the person told the Times, “No suggestion was made at that hearing…that the urine sample had been tampered with, and no questions were raised about the conduct or history of the collector involved.”

In addition, the Times reported, the “collector told the three-person arbitration panel that he kept the sample in his possession the entire weekend, according to a person in baseball familiar with his testimony.

That “person in baseball” either attended the hearing and had been instructed by the arbitrator not to say anything about it or was given details by someone who attended the hearing and was told not to discuss it.

Either way, Mr. Manfred, that and other comments on the hearing strain the credulity of your claim that no one in the commissioner’s office leaked anything.

And if additional skepticism is needed, consider an ESPN.com report:

“Although MLB officials would not comment on the record, sources told ESPN legal analyst Lester Munson they are still convinced that the sample tested came from Braun, and that the positive test result was correct. They emphasized that the FedEx package that arrived in the Montreal laboratory was sealed three times with tamper-proof seals — one on the box, one on a plastic bag inside the box, and again on the vial that contained the urine.”

And “The lab chief, an MLB source told Munson, testified that the urine was not tainted, that it was appropriate for testing, and that it tested positive for testosterone. The baseball officials, sources said, were incensed that Braun, his attorneys and the union successfully attacked the integrity of a collection procedure that is a ‘joint’ procedure.’”

No leak in the commissioner’s office? No, none at all, just a large sieve where a revolving door usually goes.

TIMING IS EVERYTHING FOR TORRE

Bud Selig has a method to his madness. It was demonstrated again last week when Joe Torre’s plan to be part of the Los Angeles Dodgers’ next ownership group fizzled.Joe Torre3 225

Torre left his job as executive vice president for baseball operations to join Rick Caruso, a Los Angeles real estate developer, in a bid to but the Dodgers. The Caruso group, however, dropped out of the bidding when Caruso learned that the seller, Frank McCourt, a parking lot guy, would not include the lots at Dodger Stadium in the deal.

Caruso held out the possibility that he could re-enter the bidding if McCourt changed his mind about the parking lots. Torre, however, may not be in position long to wait with Caruso.

Torre resigned his baseball job Jan. 4, and since that was less than eight weeks ago, the job remains vacant. Selig just doesn’t move that quickly. Now, if he wants, he could very likely rehire Torre for his executive staff. Torre, after all, has no job and no team to buy.

CEO IS RIGHT: GAME IS BIGGER THAN GIANTS

If Larry Baer is a man of his word – and there’s no reason to think he isn’t – the San Jose problem should soon evaporate.

Larry Baer 225Baer, the San Francisco Giants’ president and chief executive officer, spoke to reporters at the team’s Scottsdale, Ariz., spring camp Friday and was naturally asked about San Jose. The city is in the Giants’ legal baseball territory but is coveted by the Athletics so they can move from Oakland and build a new park there. The Giants, however, have clung to the territory, claiming that it is integral to their economic health.

Just about three years ago Commissioner Bud Selig appointed a three-man team to study the area, even make a recommendation if it could. And if he wanted. But Selig has not asked for a recommendation. He says the committee is still doing its work.

In the meantime, Baer showed up in camp Friday and stirred the San Jose pot. It’s not that he said anything one way or the other, that the Giants would cede the city to the A’s or the Giants would have to be dragged kicking and screaming into a decision favorable to the A’s.

But he did say, “I’m going to be respectful of the process here. You know, I think that’s really important. The game is bigger than any internal machinations.”

If Baer really meant that – and maybe you had to be there to hear him say it — he should be prepared to say OK to the San Jose A’s. While the A’s would benefit from a move to San Jose, one of the largest markets in the country, Major League Baseball would be an even bigger beneficiary.

Reducing the Bay area to a one-team market would enhance the Giants’ revenue and open a new market for M.L.B. By not acknowledging that double play, the Giants are being selfish, stubborn, foolish and dumb. Losing Santa Clara County to the A’s would not impoverish the Giants, the team with the fifth highest M.L.B. revenue last season.

The teams have had more than enough time to settle the matter between them, but there can be no settlement if there are no talks, and the last I heard, the Giants hadn’t returned the A’s calls for more than a month. Has Selig become such an impotent leader that he can’t order Baer to call Lew Wolff, the A’s managing partner, whose behavior throughout this three-year fiasco has been exemplary?

With each passing week, Selig’s treatment of the San Jose issue becomes more shameful. In case he has forgotten the operable phrase, it’s “in the best interests of baseball.”  Its use is overdue.

Comments? Please send email to comments@murraychass.com.